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(c) 2016 Jon L Gelman, All Rights Reserved.

Friday, August 8, 2008

The Odd Lot Doctrine Springs New Life

In 1921 Justice Cardoza while sitting on the Court of Appeals of the State of New York introduced The Odd Lot Doctrine into workers’ Compensation. The Doctrine has been brought to life again in New Jersey.

The “Odd Lot Doctrine” had its genesis in England where a claimant's search for work was fruitless since his physical defects in combination with his lack of skills made him an unmarketable unit. Various States, including New Jersey, have embodied the concept statutorily. In New Jersey where at least 75% of total disability can be attributed to medical reasons, then the other personal handicaps may be considered in combination with the medical conditions in reaching a determination of unemployability.

The Appellate Division remanded a total disability award for failure of the petitioner to provide adequate notice of the assertion of the Odd Lot Doctrine. 06T14598-06T1 JOYCE R. RAMBOUGH, Respondent, v. C.V. HILL REFRIGERATION "Under the ["odd-lot"] doctrine, the worker is viewed in the [context] of the competitive market place, where his inability to sell his labor may be traceable to his [personal] background superimposed upon his physical disability." Id. at 540; see Barbato v. Alsan Masonry, 64 N.J. 514, 526-28 (1974)

See also: "The pretrial memorandum should specify that total permanent disability under the odd-lot doctrine is an issue in the claim so that the respondent can be prepared to meet it at the time of trial. In addition, the ability to perform limited service in one's own enterprise, or a family enterprise, may not of itself be sufficient to negate industrial employability for workers' compensation purposes; the question in such a case is the worker's ability to sell his services in a competitive job market. Germain v. Cool-Rite Corporation, 70 N.J. 1, 355 A.2d 642 (1976)." 38 NJ Practice Sec. 12.12